News & Resources

Welcome to the Weltman & Moskowitz Team, Melissa!

Please help welcome our newest team member, Melissa Dlugokencky!

Melissa will be working closely with our bankruptcy, litigation and foreclosure attorneys. She brings to Weltman & Moskowitz proven legal assisting skills, an undergraduate degree from Dowling College and her paralegal certification from Queens College. Before joining us, Melissa concentrated on litigation and transactional matters at Cohen & Slamowitz (n/k/a Selip  & Styloanou, LLP), and Baker, McEvoy, Morrissey & Moskovits, P.C. You can reach Melissa at md@weltmosk.com.  

We hope you’ll say hello to Melissa the next time you call or stop in.  

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Lender Alert: Bankruptcy Judge Imposes Sanctions on Mortgage Servicer for Ignoring Bankruptcy Rules

By Richard E. Weltman and Melissa A. Guseynov

On September 12, 2016, the Chief Bankruptcy Judge for the District of Vermont directed a mortgage servicer to pay $375,000 in sanctions for failing to adequately notify debtors before imposing certain post-petition mortgage account charges. The court relied upon Rule 3002.1 of the Federal Rules of Bankruptcy Procedure (“Rules”).  In re Gravel, 2016 WL 4765773 (Bankr. D. Vt. Sept. 12, 2016). Read the full decision here.

Rule 3002.1(c) requires creditors to file and serve notice of all fees, expenses, or charges (i) that were incurred post-petition in connection with a claim, and (ii) that the creditor asserts are recoverable against debtor or debtor’s principal residence.  In addition, the rule provides that the requisite notice must be served within 180 days after the date on which the fees, expenses, or charges are incurred.

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Florida Bankruptcy Judge Expands Trustee’s Statute of Limitations to Ten Years

By Michael L. Moskowitz and Melissa A. Guseynov

On August 31, 2016, Bankruptcy Judge Robert Mark, sitting in the Bankruptcy Court located in the Southern District of Florida, held that section 544(b) of the Bankruptcy Code permits a trustee to step into the shoes of the Internal Revenue Service (“IRS”) to avoid a transfer which occurred ten years prior to the petition date. Judge Mark held the trustee could avail himself of the IRS’s ten-year statute of limitations, rather than the three- to six-year period provided by most state statutes. Mukamal v. Citibank NA (In re Kipnis), 16-1045 (Bankr. S.D. Fla. Aug. 31, 2016).

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Weltman & Moskowitz Founding Partners Named Super Lawyers for 2016

Weltman & Moskowitz, LLP is proud to announce that Richard Weltman and Michael Moskowitz have both been selected as Metro New York Area Super Lawyers for 2016. This is the third consecutive year each has been recognized as a top bankruptcy/debtor and creditors’ rights attorney. This honor is a product of a rigorous investigative process by the publishers of Law and Politics. Attorneys are selected based on professional accomplishments, licensing and certifications, peer recognition and personal achievement. The final published list represents no more than 5% of the lawyers in each state. The Super Lawyers objective is to create a credible list of outstanding attorneys, and the partners of Weltman & Moskowitz, LLP are proud to be recognized for their hard work and client dedication.

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Lenders Beware: Bankruptcy Judge Orders Mortgage Lender to Pay $250,000 in Punitive Damages for $297.72 Stay Violation

By Michael L. Moskowitz and Melissa A. Guseynov

In June, a Bankruptcy Judge for the Northern District of Ohio calculated $250,000 in punitive damages against a mortgage lender for violating the automatic stay by incorrectly filing a proof of claim on a car loan that had not been transferred to that lender. In re Mocella, 552 B.R. 706 (Bankr. N.D. Ohio 2016).

Here, the originating lender held a mortgage on debtors’ residence as well as a car loan. As part of a bulk transfer of loans, the originating lender assigned the mortgage to a new lender. The car loan was not transferred. Due to a bookkeeping error, the new lender mistakenly thought the car loan had been transferred to it, along with the mortgage loan. As a result of this error, the new lender filed a proof of claim for both the mortgage and car loan.

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Creditor Alert: Debt Collectors May Face FDCPA Liability for Filing Stale Bankruptcy Claims

By Michael L. Moskowitz and Melissa A. Guseynov

We’ve previously covered the interplay between the Bankruptcy Code and Fair Debt Collection Practices Act (“FDCPA”). Recent litigation has focused on debtor challenges to time-barred proofs of claim. This has resulted in conflicting statutory interpretation. In a recent decision, the United States Court of Appeals for the Eleventh Circuit held that debt collectors, defined as a type of creditor under the FDCPA, may face FDCPA liability for knowingly filing a time-barred proof of claim in a bankruptcy case. Johnson v. Midland Funding, LLC, 2016 WL 2996372 (May 24, 2016).

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CREDITORS TAKE NOTICE: Filing of Stale Claim in a Bankruptcy Case May Not Violate the Fair Debt Collection Practices Act

By Michael L. Moskowitz and Melissa A. Guseynov

In a recent decision out of the United States Bankruptcy Court for the Northern District of Illinois, Judge Benjamin Goldgar dismissed Debtor’s adversary proceeding complaint in which the debtor alleged the debt collector violated the Fair Debt Collection Practices Act (“FDCPA”) by merely filing a proof of claim. In re Murff, 2015 WL 3690994 (Bankr. N.D. Ill. June 15, 2015).

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Supreme Court Agrees to Resolve Circuit Split Regarding Structured Dismissals

By Michael L. Moskowitz

The United States Supreme Court (SCOTUS) has agreed to resolve another bankruptcy issue which has split the circuit courts. This time, the high court will address a chapter 11 reorganization issue. The most recent SCOTUS decisions have focused primarily on consumer bankruptcy issues.

At issue here is whether bankruptcy courts may dismiss chapter 11 cases when property is distributed in a settlement that does not comply with the priority scheme for distributions set forth in Section 507 of the Bankruptcy Code.

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Lender Alert: New York Legislation Requires Lenders to Maintain Abandoned Homes Before Foreclosure

By Michael L. Moskowitz

On June 23, 2016, New York Governor Andrew Cuomo signed into law legislation which amends section 1307 of the New York Real Property Actions and Proceedings Law (RPAPL). The new law becomes effective 90 days from June 23, 2016.

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SCOTUS: False Representation Now Unnecessary to Find Consumer Bankruptcy Fraud

By Richard E. Weltman and Melissa A. Guseynov

SCOTUS: False Representation Now Unnecessary to Find Consumer Bankruptcy Fraud by Richard E. WeltmanWe previously reported on the split among the federal circuit courts of appeal concerning circumstances under which a debtor’s discharge with regard to a particular debt may be denied based on actual fraud if, prior to filing, the debtor transferred assets away from creditors without directly misleading them. In Husky International Electronics, Inc. v. Ritz, the United States Supreme Court settled the split of opinion among the lower courts, holding that debtor’s actual misrepresentation is not a necessary prerequisite to demonstrate “actual fraud” under section 523(a)(2)(A). Husky Inter. Elect., Inc. v. Ritz, 136 S.Ct. 1581 (2016).

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Bankruptcy Update: New Jersey Bankruptcy Judge Allows Debtor to Retain Inherited IRA

By Michael L. Moskowitz and Melissa A. Guseynov

Bankruptcy Update: New Jersey Bankruptcy Judge Allows Debtor to Retain Inherited IRA by Michael L. Moskowitz and Melissa A. GuseynovIn 2013 the Supreme Court held that funds held in an inherited non-spousal IRA were not exempt under Section 522 of the Bankruptcy Code. You can read our blog article on Clark v. Rameker here. However, in a New Jersey bankruptcy court decision handed down last month, Bankruptcy Judge Christine M. Gravelle held that an inherited IRA is not property of the debtor’s bankruptcy estate, regardless of whether it would be characterized as an exempt asset under the Bankruptcy Code. In re Norris, 2016 WL 2989234 (Bankr. D.N.J. May 20, 2016).

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Bankruptcy Update: Seventh Circuit Holds That Tenant’s Pre-Petition Termination of Lease May be Voidable in Bankruptcy

By Michael L. Moskowitz and Melissa A. Guseynov

Bankruptcy Update: Seventh Circuit Holds That Tenant’s Pre-Petition Termination of Lease May be Voidable in Bankruptcy by Michael L. MoskowitzOn March 11, 2016, the Court of Appeals for the Seventh Circuit held that a tenant debtor’s pre-petition lease termination may be voidable as a fraudulent conveyance or a preferential transfer in the tenant’s subsequent bankruptcy case. In re Great Lakes Quick Lube LP, 816 F.3d 482 (7th Cir. 2016).

In this case, fifty-two days prior to filing for bankruptcy protection, Great Lakes Quick Lube LP (“Debtor”), surrendered two profitable commercial leases to its landlord for various business-related purposes. Following Debtor’s chapter 11 filing, its official committee of unsecured creditors commenced an adversary proceeding seeking to void the lease terminations, arguing the lease terminations were either preferential or fraudulent transfers. After trial, the Bankruptcy Court ruled in favor of Debtor holding, among other things, that the lease terminations did not constitute transfers. The decision was directly appealed to the Seventh Circuit.

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Madoff Update: Mere Suspicion of Fraud Not Enough to Extend Trustee “Claw-Back” to Six Years

By Michael L. Moskowitz

We have previously reported on Bernard Madoff’s massive Ponzi scheme and the resultant “clawback” lawsuits pending in the bankruptcy and district courts for the Southern District of New York.

In a decision dated March 14, 2016, Bankruptcy Judge Stuart Bernstein granted partial relief to an investment fund seeking to dismiss a “clawback” lawsuit filed by Irving Picard, the trustee for Bernard L. Madoff Investment Securities, LLC (“BLMIS”). Judge Bernstein found that Trustee Picard could not recover fictitious profits and principal recoveries in the six years before bankruptcy because there was no showing the investment firm had “actual” knowledge of Madoff’s fraud.

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Bankruptcy Update: District Court Prohibits Chapter 13 Debtors From Compelling Mortgagee to Accept Title to Surrendered Property

By Michael L. Moskowitz and Melissa A. Guseynov

Bankruptcy Update: District Court Prohibits Chapter 13 Debtors From Compelling Mortgagee to Accept Title to Surrendered Property by Michael L. Moskowitz and Melissa GuseynovWe previously reported on In re Sherwood, a Southern District of New York bankruptcy decision, wherein the court held a debtor could not confirm a chapter 13 plan over a lender’s objection where the plan would vest title to surrendered property in the mortgagee without its consent. See In re Sherwood, 2016 WL 355520, at * 7 (Bankr. S.D.N.Y. Jan. 28, 2016).

In a recent appeal of a bankruptcy court decision, the District Court for the Eastern District of New York agreed with In re Sherwood and other “persuasive authority,” in confirming that a secured creditor’s rights under the Bankruptcy Code are “impermissibly compromised by a Chapter 13 plan that provides for non-consensual” vesting of collateral. HSBC Bank USA, N.A. v. Zair, 2016 WL 1448647, at * 1 (E.D.N.Y. April 12, 2016).

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Condominium Associations in New Jersey Score Big Win Protecting Pre-Petition Liens in Consumer Bankruptcy Cases

By Michael L. Moskowitz

Condominium Associations in New Jersey Score Big Win  Protecting Pre-Petition Liens in Consumer Bankruptcy Cases by Michael L. MoskowitzPost-petition claims of condominium associations for common charges have always held a protected status when a consumer debtor files for bankruptcy relief. Under 11 U.S.C. §523 (a)(16), as amended in 2005, chapter 7 debtors who retain legal, equitable and/or possessory ownership interest in their condominium unit remain liable for post-petition condominium charges.

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Don’t Be Fooled: Bankruptcy Exemptions & Dollar Amounts Rose Again on Apr 1

By Richard E. Weltman

Don’t Be Fooled: Bankruptcy Exemptions & Dollar Amounts Rose Again on April 1 By Richard E. WeltmanA 3% cost of living adjustment became effective for new bankruptcy cases filed on and after April 1, 2016, according to the Judicial Conference of the United States. This means certain dollar amounts relating to small business chapter 11 cases, preference claims, means testing, and property exemptions went up. These adjustments to the federal Bankruptcy Code are automatically issued every three years to keep up with inflation.

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Lender Advisory: Second Circuit Approves Debtor’s FDCPA Lawsuit After Receiving Bankruptcy Discharge

By Michael L. Moskowitz and Melissa A. Guseynov

Lender Advisory: Second Circuit Approves Debtor’s FDCPA Lawsuit After Receiving Bankruptcy Discharge by Michael L. MoskowitzIn a recent decision of relevance to lenders, Garfield v. Ocwen Loan Servicing, LLC (“Ocwen”), 2016 WL 26631 (2d Cir. Jan. 4, 2016), the Court of Appeals for the Second Circuit held that a debtor may commence a lawsuit to dispute a lender’s collection practices under the Fair Debt Collection Practices Act (“FDCPA”) after receiving a discharge in bankruptcy.  

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Lender Alert: Chapter 13 Debtor Can't Compel Secured Lender to Accept Title to Surrendered Collateral

By Michael L. Moskowitz and Melissa A. Guseynov

Lender Alert: Chapter 13 Debtor Can't Compel Secured Lender to Accept Title to Surrendered Collateral by Michael L. MoskowitzIn a recent opinion, Bankruptcy Judge James L. Garrity, Jr., sitting in the Southern District of New York, held that a debtor cannot confirm a chapter 13 plan over a lender’s objection where the plan would compel the transfer of title to the secured creditor, explaining that forcing title onto the creditor would transform the creditor’s right to recover its collateral into an obligation, thereby rewriting the Bankruptcy Code and the underlying loan documents. In re Sherwood, 2016 WL 355520, at * 7 (Bankr. S.D.N.Y. Jan. 28, 2016).

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Lenders’ Best Practices in Foreclosure Cases Revisited: Mortgagees’ Lack of Good Faith May Lead to Assessment of Sanctions by Courts

By Michael L. Moskowitz and Michele Jaspan

Lenders’ Best Practices in Foreclosure Cases Revisited: Mortgagees’ Lack of Good Faith May Lead to Assessment of Sanctions by Courts by Michael L. MoskowitzWe previously reported on cases where lenders are forced to forfeit accrued mortgage interest as a result of a court’s finding of “bad faith,” regarding borrower requests for mortgage modifications. The foreclosure courts are continuing to find new ways to sanction lenders as evidenced below.

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Foreclosure Alert: Failure to Establish Proper Mailing Practices Can Lead to Foreclosure Case Dismissal

By Michael L. Moskowitz and Michele Jaspan

Foreclosure Alert: Failure to Establish Proper Mailing Practices Can Lead to Foreclosure Case Dismissal by Michael L. MoskowitzWe previously reported on the importance of strict compliance with the mailing of the 90-day pre-foreclosure notice pursuant to RPAPL §1304 (“Notice”). Such strict compliance has become fodder for defendants’ lawyers as failure to give such notice to all persons signing either the note or mortgage, as a borrower, is a fatal defect. Lender’s failure to comply with this important condition precedent will result in case dismissal.

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Lender Update: Louisiana Bankruptcy Judge Allows Chapter 7 Debtor to Strip-Off Wholly Unsecured Judicial Lien

By: Michael L. Moskowitz and Melissa A. Guseynov

Lender Update: Louisiana Bankruptcy Judge Allows Chapter 7 Debtor  to Strip-Off Wholly Unsecured Judicial Lien by Michael L. MoskowitzA chapter 7 debtor in Louisiana recently succeeded in avoiding a $180,000 judgment lien on her home after a bankruptcy judge concluded that the United States Supreme Court's holding in Dewsnup v. Timm, 502 U.S. 410 (1992) is not applicable to non-consensual judicial liens. In re Mayer, 2015 WL 7424327 (Nov. 20, 2015).  

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Supreme Court Expected to Take Close Look at Student Loan Debt in Bankruptcy: ‘Fresh Start’ or ‘Undue Hardship’?

By Richard E. Weltman and Melissa A. Guseynov

Supreme Court Expected to Take Close Look at Student Loan Debt in Bankruptcy: ‘Fresh Start’ or ‘Undue Hardship’ By Richard E. WeltmanWe have previously reported on judicial treatment of student loan debt dischargeability in bankruptcy—more specifically, how federal courts construe section 523(a)(8) of the Bankruptcy Code, which prohibits bankruptcy courts from discharging most student loan debt “unless excepting such debt from discharge under this paragraph would impose an undue hardship on the debtor and the debtor’s dependents.” 11 U.S.C. § 523(a)(8).  

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RECENT SUCCESS STORY: Zealous Advocacy Secures Payment in Full for Client in A&P Chapter 11 Cases

By Richard E. Weltman and Melissa A. Guseynov

RECENT SUCCESS STORY - Zealous Advocacy Secures Payment in Full for Client in A&P Chapter 11 Cases By Richard E. WeltmanWhen creditors learn that an entity that owes them money has filed for bankruptcy protection, they often fear their claims will remain unpaid or that they will only collect pennies on the dollar. And while that is typically the outcome for unsecured claimants, in certain circumstances creditors may be able to recover a substantial portion of their debt. In fact, as further described below, with effective counsel, a creditor may recover its claim in full.

 

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Lender Alert: Two New York Federal Courts Find No FDCPA Violation -Where Debtor Account Numbers Appear on Collection Envelopes

By Richard E. Weltman and Melissa A. Guseynov

Lender Alert: Two New York Federal Courts Find No FDCPA Violation By Richard E. WeltmanWe have previously reported on the nuances of the federal Fair Debt Collection Practices Act (“FDCPA”) and the pitfalls to lenders who fail to strictly adhere to its requirements. However, in two recent unrelated federal court decisions, Judge Colleen McMahon of the District Court for the Southern District of New York and Judge John Curtin of the District Court for the Western District of New York, both concluded that the mere appearance of an account number on a collection envelope, without more, does not violate FDCPA.

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Lender Advisory: E.D.Pa. Clarifies Interplay Between FDCPA and Bankruptcy Code

By Richard E. Weltman and Melissa A. Guseynov

Lender Advisory: E.D.Pa. Clarifies Interplay Between FDCPA and Bankruptcy Code By Richard E. WeltmanIn a recent decision important to lenders, Torres v. Asset Acceptance, LLC, the Hon. Eduardo C. Robreno, U.S.D.J., held that filing a stale proof of claim in bankruptcy court cannot form the basis of a claim under the Fair Debt Collection Practices Act (“FDCPA”).

The facts are as follows: Margaret Torres filed for relief under Chapter 13 in the United States Bankruptcy Court for the Eastern District of Pennsylvania. Creditor, Asset Acceptance, thereafter filed a proof of claim for “money loaned.”

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Best Practices Alert: Obtain Court Order When Extending Bankruptcy Deadlines

Best Practices Alert: Obtain Court Order When Extending Bankruptcy Deadlines By Michael L. MoskowitzBy Michael L. Moskowitz and Michele K. Jaspan

Attorneys who litigate are often faced with statutory deadlines. When the need arises to extend deadlines, it is not unusual for extensions to be routinely granted between counsel, often informally. But how often do bankruptcy practitioners, in particular, have stipulations extending statutory deadlines “So Ordered” by the court? Apparently, not often enough.

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Foreclosure Advisory: Mortgagee's Lack of Good Faith May Lead to Forfeiture

By Michael L. Moskowitz and Melissa A. Guseynov

Foreclosure Advisory: Mortgagee's Lack of Good Faith May Lead to Forfeiture By Michael L. MoskowitzIn the recent case of Federal National Mortgage Assoc. v. Singer (Case No. 850039/2011, Sup Ct, NY County, July 21, 2015), Manhattan Supreme Court Justice Peter Moulton determined that two mortgage banks, Federal National Mortgage Association and Bank of America, N.A. (“Lenders”), must forfeit more than $100,000.00 in accrued mortgage interest for acting in bad faith regarding borrower requests for mortgage modifications.   

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One Size Fits Some: Defending Preference and Fraudulent Transfer Claims

By Richard E. Weltman

One Size Fits Some:  Defending Preference and Fraudulent Transfer Claims By Richard E. WeltmanMost debtors see bankruptcy as a way to wipe out debt at the expense of creditors. This is sometimes true, but only part of the story. The bankruptcy code also protects creditors in many important ways. One way is by preserving the equal distribution of a debtor’s assets. One of the bankruptcy code provisions that seeks to level the playing field respecting equal asset distribution among unsecured creditors is section 547.

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Supreme Court Asked to Resolve Circuit Split Regarding Consumer Bankruptcy Fraud

By Richard E. Weltman and Melissa A. Guseynov

Supreme Court Asked to Resolve Circuit Split Regarding Consumer Bankruptcy Fraud By Richard E. WeltmanThe United States Supreme Court has been asked to resolve another split among the circuit courts assessing fraud in consumer bankruptcy cases. At issue is whether debtors in chapter 7 and chapter 13 cases can have their debt discharges blocked under section 523(a)(2)(A) of the bankruptcy code, following pre-petition efforts to transfer assets away from creditors without directly misleading them. The First and Seventh Circuit Courts of appeal have both issued holdings that directly conflict with a recent ruling by the Fifth Circuit. The Second Circuit has not directly addressed whether a court may find “actual fraud” absent a specific finding of misrepresentation by a debtor.

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2015 Mid-Year Review of Supreme Court Bankruptcy Decisions: Part 5

Harris v. Viegelahn

Debtor Who Converts to Chapter 7 Is Entitled to Return of Funds Not yet Distributed By Chapter 13 Trustee

 By Michael L. Moskowitz and Melissa A. Guseynov

2015 Mid-Year Review of Supreme Court Bankruptcy Decisions: Part 5 By Michael L. MoskowitzOn May 18, 2015, in Harris v. Viegelahn, the United States Supreme Court unanimously held that undistributed plan payments made by a debtor from his or her wages, and held by a Chapter 13 trustee at the time of the case’s conversion to Chapter 7, must be returned to the debtor. Harris v. Viegelahn, 135 S.Ct. 1829 (2015). The decision resolves a Circuit split, as well as an issue that has divided bankruptcy courts for decades.

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2015 Mid-Year Review of Supreme Court Bankruptcy Decisions: Part 4

Wellness International Network Ltd. v. Sharif

Bankruptcy Judges May Render Final Decisions on Legal Disputes Arising in Bankruptcy if All Parties Consent

By Michael L. Moskowitz and Melissa A. Guseynov

2015 MID-YEAR REVIEW OF SUPREME COURT BANKRUPTCY DECISIONS: PART 4 By Michael L. MoskowitzOn May 26, 2015, in Wellness International Network Ltd. v. Sharif, the Supreme Court held that Article III of the United States Constitution permits bankruptcy judges to adjudicate so called “Stern” claims, with the parties’ knowing and voluntary consent. Wellness International Network Ltd. v. Sharif, 135 S.Ct. 1932 (2015).   

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2015 Mid-Year Review of Supreme Court Bankruptcy Decisions: Part 3

Bullard v. Blue Hills Bank 

Orders Denying Bankruptcy Plan Confirmation
are Not Final Orders for Purposes of Appeal

 By Richard E. Weltman and Melissa A. Guseynov

2015 Mid-Year Review of Supreme Court Bankruptcy Decisions: Part 3

This term, in Bullard v. Blue Hills Bank, the United States Supreme Court unanimously decided that orders denying plan confirmation do not constitute final orders from which an appeal may be immediately taken as a matter of right.  The decision resolves a significant circuit split and may shift the balance of power in bankruptcy cases against debtors seeking to confirm plans and emerge from the bankruptcy process on their own terms.

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2015 Mid-Year Review of Supreme Court Bankruptcy Decisions: Part 2

Baker Botts LLP v. Asarco LLC

Litigation Fees Incurred By Counsel in Defense of Bankruptcy Fee Application are not Compensable

By Michael L. Moskowitz and Michele K. Jaspan

2015 Mid-Year Review of Supreme Court Bankruptcy Decisions: Part 2 By Michael L. MoskowitzThe Supreme Court recently ruled that bankruptcy courts may not award legal fees to professionals for the costs incurred in defending their fees. The decision in Baker Botts, LLP v. ASARCO, LLC, written by Justice Clarence Thomas for the majority, held that section 330(a) of the United States Code does not give bankruptcy courts the discretion to award fee-defense fees under any circumstances. Thus, the Supreme Court affirmed the ruling by the Court of Appeals for the Fifth Circuit which reversed the bankruptcy court’s fee award to Debtor’s counsel for costs incurred in defense of its $120 million fee application.  The Baker Botts firm sought to recover in excess of $5 million for time spent litigating in defense of their fee application in Asarco’s Chapter 11 bankruptcy case.

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2015 Mid-Year Review of Supreme Court Bankruptcy Decisions: Part 1

Bank of America, N.A. v. Caulkett

Junior Mortgages Remain Viable Liens Even if Residential Property is Completely Underwater in a Chapter 7 Case

By Michael L. Moskowitz and Michele K. Jaspan

2015 Mid-Year Review of Supreme Court Bankruptcy Decisions: Part 1 By Michael L. Moskowitz and Michele K. JaspanThe United States Supreme Court recently reversed a ruling from the Eleventh Circuit in the case of Bank of America, N.A. v. Caulkett, which had permitted individual chapter 7 debtors to “strip” junior liens off their homes when the first mortgage lien was underwater. The Supreme Court held that a debtor in a chapter 7 proceeding may not void a junior mortgage lien under section 506(d) of the Bankruptcy Code when the debt owed on a senior mortgage lien exceeds the current value of the collateral, if the creditor’s claim is both secured by a lien and allowed under section 502 of the Bankruptcy Code.

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Petters Update: Minnesota Supreme Court Ruling May Affect Clawback Lawsuits

By Michael L. Moskowitz and Melissa A. Guseynov

 Petters Update: Minnesota Supreme Court Ruling May Affect Clawback LawsuitsWe have previously reported on Thomas Petters’ $3.5 billion Ponzi scheme and the resultant “claw back” lawsuits currently pending in the Minnesota bankruptcy court. Read that report here.

In Ponzi scheme clawback litigation, a trustee, receiver or creditor will often utilize the Ponzi scheme “presumption” to prove the fraudulent intent of a transferor in connection with fraudulent transfer claims by establishing that the debtor operated a Ponzi scheme, and that the transfers at issue were made in furtherance of that scheme. In particular, the Ponzi scheme presumption proves that, among other things, the person or entity running the scheme had actual intent to defraud investors.

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LENDERS BEWARE: How One Borrower Acquired His House Practically for Free

By Michael L. Moskowitz and Michele K. Jaspan

LENDERS BEWARE: How One Borrower Acquired His House Practically for FreeIn the case of In re Washington, No. 14-14573-TBA, 2014 WL 5714586 (Bankr. D.N.J. Nov. 5, 2014), the United States Bankruptcy Court for the District of New Jersey held that the mortgagee and mortgage servicer (“the Mortgagees” or “Plaintiff”) were time-barred under New Jersey state law from enforcing borrower’s default under both the note and mortgage. As a result, the borrower hit the jackpot and was entitled to own his home, free and clear of the mortgage debt, even though he only made three mortgage payments before the loan went into default.

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Get It Right the First Time: Best Practices for Mailing and Recording the New York RPAPL 90-day Pre-Foreclosure Notice

By Michael L. Moskowitz

 Get It Right the First Time: Best Practices for Mailing and Recording the New York RPAPL 90-day Pre-Foreclosure Notice By Michael L. MoskowitzNew York’s Real Property Actions and Proceedings Law (“RPAPL”) § 1304 requires a mortgage lender to notify a residential home borrower of an impending foreclosure action at least 90 days before the foreclosure action is commenced, using specific statutory language, printed in 14 point type, sent by registered or certified mail, as well as by first class mail, to the borrower. The emphasis of this article is the peril which will befall a lender if it fails to timely register the statutorily mandated notice.  

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Lenders Beware: Automatic Freezing of Debtor’s Account Without Legal Review Can Be Costly

By Michael L. Moskowitz

Lenders Beware: Automatic Freezing of Debtor’s Account Without Legal Review Can Be Costly By Micahel MoskowitzIn December 2014, the Chief U.S. Bankruptcy Judge for the Southern District of New York, Cecelia Morris, handed a setback to lenders (In re Weidenbenner, Bankr. S.D.N.Y., No. 14-35443, 12/12/14), when she concluded a financial institution violates the automatic stay imposed upon the filing of a chapter 7 petition pursuant to 11 U.S.C. §362, simply by freezing a debtor’s bank account where it turns out no right of setoff exists.

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Lender Alert: New Jersey Appeals Court Holds that Homeowners May Sue Over Denial of Mortgage Modifications

By Michael L. Moskowitz

Lender Alert: New Jersey Appeals Court Holds that Homeowners May Sue Over Denial of Mortgage Modifications By Michael L. MoskowitzA New Jersey Appeals Court recently held that homeowners who enter into trial agreements to modify their mortgages under the Federal Home Affordable Modification Program (“HAMP”), and comply with the terms thereof, may commence suit for breach of contract, and possibly consumer fraud, if lenders deny them permanent modifications.

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Supreme Court Hears Argument on Debtors’ Efforts to Strip-Off Underwater Mortgages in Chapter 7

By Michael L. Moskowitz

Supreme Court Hears Argument on Debtors’ Efforts to Strip-Off Underwater Mortgages in Chapter By Michael L. Moskowitz{2:25 minutes to read} On November 17, 2014, the Supreme Court agreed to review two appeals filed by Bank of America against homeowners who filed Chapter 7 bankruptcies and then sought to “strip off” the lender’s underwater mortgage liens. In Bank of America, N.A. v. Caulkett (No. 13-1421) and Bank of America, N.A. v. Toledo-Cardona (No. 14-163), the Court of Appeals for the Eleventh Circuit ruled in favor of the homeowners, leading to Bank of America’s appeals to the Supreme Court.

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Michael Moskowtiz Participates in the Plainview-Old Bethpage JFK High School's 27th Annual Moot Court Competition Held on March 26, 2015

Media Contact: Michael L. Moskowitz 212.684.7800

E-mail: mlm@weltmosk.com or rew@weltmosk.com

For Immediate Release

Supreme Court Hears Argument on Debtors’ Efforts to Strip-Off Underwater Mortgages in Chapter 7NEW YORK, NY – On March 26, 2015, Michael L. Moskowitz, a founding member of Weltman & Moskowitz, LLP, participated as one of the judges in the Plainview-Old Bethpage John F. Kennedy High School’s 27th Annual Marvin Hazan Moot Court Competition. Mr. Moskowitz participated as a jurist for the eighth consecutive year. The tournament was co-sponsored by the Maurice A. Deane School of Law at Hofstra University.



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Most Recent Success Story: Tenacity and Preparation Save Creditor’s Late Claim

by Richard E. Weltman

Most Recent Success Story: Tenacity and Preparation Save Creditor’s Late Claim by Richard E. Weltman{3:36 minutes to read} When representing a creditor in a bankruptcy case, it helps when counsel understands that being told it is “too late” to file a claim may not be the last word. The filing of a late claim may still be possible in certain circumstances. 

Our client, a personal injury attorney, represented the administrator of his wife’s estate in a wrongful death lawsuit. The decedent was severely burned when her clothing caught fire.

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Weltman & Moskowitz Forms Strategic Alliance with Saiber, LLC

WELTMAN & MOSKOWITZ FORMS STRATEGIC ALLIANCE WITH SAIBER, LLC By Richard E. Weltman & Michael L. MoskowitzFounding partners Richard E. Weltman & Michael L. Moskowitz are pleased to announce that effective January 1, 2015, the attorneys at Weltman & Moskowitz have become Counsel to the New Jersey-based Saiber law firm. This alliance will allow both firms to develop new relationships and opportunities.

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NJ Court: Bank Has Duty to Prevent Injury in Foreclosed Home

By Richard E. Weltman

NJ Court: Bank has Duty to Prevent Injury in Foreclosed Home By Richard E. Weltman{1:54 minutes to read} Wells Fargo Bank, as the owner of a foreclosed home in New Jersey, owed a duty of care to a prospective homebuyer who was injured when she tripped on a piece of glass while touring the home, a federal court judge in Newark ruled on January 28, 2015.

In reaching his decision, U.S. Magistrate Judge Michael A. Hammer explained that commercial lenders taking possession of a residential property through mortgage foreclosure assume the position of the owner, and thus assume the owner’s non-delegable duty to protect visitors from reasonably foreseeable injuries due to potentially dangerous conditions.

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Success Stories: 2 Bankruptcy Adversary Proceedings Withdrawn Early, Saving Time & Resources - Part 2

By Michael L. Moskowitz

Success Stories: 2 Bankruptcy Adversary Proceedings Withdrawn Early, Saving Time & Resources - Part 2  By Michael L. MoskowitzIn our previous article, we shared the story of a personal injury attorney that was recently sued in an adversary proceeding filed in the United States bankruptcy court. Weltman & Moskowitz successfully established that the complaint was without merit and Plaintiff agreed to withdraw the complaint before answers were required to be filed or discovery ensued. In doing so, we saved our client the time and expense associated with protracted litigation.. Today, we bring you the story of another client of ours, a large regional banking institution, in the same position with the same successful results.

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Success Stories: 2 Bankruptcy Adversary Proceedings Withdrawn Early, Saving Time & Resources - Part 1

By Michael L. Moskowitz

Success Stories: 2 Bankruptcy Adversary Proceedings Withdrawn Early, Saving Time and ResourcesTwo of our clients, one, a large regional bank, and the other, a personal injury attorney, were both recently sued in adversary proceedings filed in the United States bankruptcy courts. Weltman & Moskowitz successfully established that both complaints were without merit and each plaintiff agreed to withdraw the complaint before answers were required to be filed. In doing so, we saved these clients significant legal fees and expenses and the distractions associated with protracted litigation.

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CASE STUDY: BANKRUPTCY RULE 3002.1(c)

Lenders Must Strictly Comply with Chapter 13 Noticing Procedures to Avoid Possible Motion Seeking Sanctions for Inadvertent Stay Violation

By Richard E. Weltman

CASE STUDY: BANKRUPTCY RULE 3002.1(c) The Federal Rules of Bankruptcy Procedure were amended late in 2011 to include Rule 3002.1, entitled Notice Relating to Claims Secured by Security Interest in the Debtor’s Principal Residence. Simply put, a mortgage lender must provide to the debtor, debtor’s counsel, and the chapter 13 bankruptcy trustee, notice of any fees, expenses or charges incurred by lender in connection with its claim, following commencement of the chapter 13 case. The lender must use Official Form B10, Supplement 2, found here.  A deviation from the use of this official form and its noticing procedure can result in an unwanted motion seeking damages for technical violation of the bankruptcy stay. The lesson here for lenders is to be careful and adhere to strict protocols.

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Supreme Court Rules Inherited IRAs are Not Protected in Bankruptcy

Supreme Court Rules Inherited IRAs are Not Protected in Bankruptcy By Michael L. Moskowitz and Melissa A. GuseynovPartner Michael L. Moskowitz and Associate Melissa A. Guseynov co-authored an article published in the December 2014 issue of Nassau Lawyer. They discussed the Supreme Court decision that inherited IRAs are not protected in bankruptcy, a timely topic Weltman and Moskowitz has been following and reporting on regularly.

Read an excerpt of the article below.

Supreme Court Rules Inherited IRAs are Not Protected in Bankruptcy 

By Michael L. Moskowitz and Melissa A. Guseynov

On June 12, 2014, in a unanimous 9-0 decision in Clark v. Rameker, the United States Supreme Court ruled that inherited individual retirement accounts(IRAs) are not retirement funds within the meaning of the Bankruptcy Code.1 This decision resolves a split among the federal appellate courts about the status of IRAs that parents leave to their children and others.

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NY’s Highest Court to Rule on NYC Debt Collection Statute

By Richard E. Weltman

NY’s Highest Court to Rule on NYC Debt Collection Statute By Richard E. WeltmanNew York State’s highest court recently agreed to consider whether New York City's effort to limit law firms’ ability to collect debts violates the state's exclusive power to regulate attorney conduct.

The Court of Appeals will take up two certified questions from the United States Court of Appeals for the Second Circuit, which ruled that the case — in which Eric Berman PC and Lacy Katzen LLP contest the legality of Local Law 15 — raises unresolved and significant issues about the scope of New York State’s exclusive authority to regulate attorney activities. Berman v. City of New York, 2014 WL 5463299 (Oct. 29, 2014).

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ALERT: New York’s Highest Court Rules for Debtor’s Right to Protect Rent-Stabilized Lease in Bankruptcy

By Michael L. Moskowitz

ALERT: New York’s Highest Court Rules for  Debtor’s Right to Protect Rent-Stabilized Lease in Bankruptcy By Michael L. MoskowitzA long journey has finally come to an end for Mary Veronica Santiago-Monteverde (“Debtor”), an elderly widow, who has resided in a Manhattan rent-stabilized apartment for more than 40 years. We have reported previously on Debtor’s opposition to her chapter 7 trustee’s efforts to sell her rent-stabilized lease to her landlord as a so-called asset of the bankruptcy estate.   

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ALERT: Update on Debtor Efforts to Strip-Off Underwater Mortgages in Chapter 7 Supreme Court Grants Certiorari to Mortgage Lender

ALERT: Update on Debtor Efforts to Strip-Off Underwater Mortgages in Chapter 7  Supreme Court Grants Certiorari to Mortgage Lender By Michael L. MoskowitzWe have previously reported on an Eleventh Circuit case entitled Bank of America, N.A. v. David Lamar Sinkfield (No. 13-700), in which the Supreme Court denied Bank of America’s petition for certiorari regarding whether section 506(d) of the Bankruptcy Code allows a debtor to remove or strip-off a wholly unsecured—or “underwater”—mortgage lien in chapter 7 bankruptcy. See the original article here.

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Update on NYC Rent Stabilization: City and State Officials Advocate for Debtor

Update on NYC Rent Stabilization: City and State Officials Advocate for Debtor By Michael L. MoskowitzWe have reported several times in connection with the chapter 7 case of Mary Veronica Santiago-Monteverde (“Debtor”), an elderly widow, who has resided in a rent-stabilized apartment in New York City since the 1970s. To see the prior articles click here.

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NY Appellate Division Sets Boundaries on Mandatory Foreclosure Conferences Held Pursuant to NY CPLR §3408

By Michael L. Moskowitz

NY Appellate Division Sets Boundaries on Mandatory Foreclosure Conferences Held Pursuant to NY CPLR §3408The New York Supreme Court Appellate Division for the Second Department recently clarified that New York’s CPLR§ 3408, which requires parties in a residential foreclosure action to participate in a settlement conference, was not applicable where the mortgage collateralized a personal guaranty of a commercial loan to a corporation. Independence Bank v. Valentine, 113 A.D. 3d 62 (2d. Dept 2013).  

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LEGISLATIVE UPDATE - New York State Promulgates New Rules for Consumer Debt Collection Lawsuits

By Michael L. Moskowitz

LEGISLATIVE UPDATE - New York State Promulgates New Rules for Consumer Debt Collection Lawsuits By Michael L. MoskowitzOn September 17, 2014, the New York state court administrators announced stricter rules for creditors seeking judgments against consumers in debt collection lawsuits. Applicable only to debt incurred in connection with consumer credit transactions,[1] the new rules are specifically intended to prohibit creditors from collecting a debt: (i) that a consumer has already paid off, (ii) that was not incurred by that particular consumer; and (iii) where the six-year statute of limitations has expired.

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Weltman & Moskowitz Secures Dismissal of Federal Lawsuit

Weltman & Moskowitz Secures Dismissal of Federal Lawsuit By Richard E. WeltmanA logistics and warehousing company came to Weltman & Moskowitz, LLP, a New York and New Jersey business litigation law firm, because it believed it was wrongfully named as a defendant in a multi-party federal lawsuit commenced in the Southern District of New York by the insurer subrogee of the consignor. Insurer alleged that our client had acted as a freight forwarder and bailee with respect to certain cargo damaged by Superstorm Sandy in October 2012.

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Weltman & Moskowitz Founding Partners Named Super Lawyers for 2014

Weltman & Moskowitz Founding Partners  Named Super Lawyers for 2014Weltman & Moskowitz, LLP is proud to announce the selection of its founding partners, Richard E. Weltman and Michael L. Moskowitz, as Super Lawyers for 2014. This honor is a product of a rigorous investigative process by the publishers of Law and Politics.  Attorneys are selected based on professional accomplishments, licenses and certificates, peer recognition and personal achievements. The final published list represents no more than 5% of the lawyers in each state. 

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Tri-Chapter Golf Tournament Raises $10.5K for CUPAC

Tri-Chapter Golf Tournament Raises $10.5K for CUPACOn August 11, Michael Moskowitz was part of the winning foursome at a golf outing that helped raise more than $10,500 for the state’s Credit Union Political Action Committee (CUPAC). The Catskill-Hudson, Westchester-Rockland and Metropolitan Chapters held the event. Nearly 80 golfers participated in the tournament.

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Stern v. Marshall Update: Sixth Circuit Confirms Bankruptcy Court Power to Enter Money Judgments in Non-Dischargeability Actions

By Richard E. Weltman

Stern v. Marshall Update: Sixth Circuit Confirms Bankruptcy Court Power to Enter Money Judgments in Non-Dischargeability ActionsIn its recent decision, Hart v. Southern Heritage Bank, 2014 WL 1663029 (6th Cir. April 28, 2014), the Sixth Circuit Court of Appeals determined that the United States Supreme Court’s seminal holding in Stern v. Marshall, 131 S. Ct. 2594 (2011) does not preclude a bankruptcy court from issuing final judgments in non-dischargeability challenges under section 523(a)(2)(B) of the Bankruptcy Code.

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More Judicial Oversight to Expedite NY’s Mandatory Foreclosure Conferences

More Judicial Oversight to Expedite  NY’s Mandatory Foreclosure ConferencesNew York’s Office of Court Administration recently announced relief for lenders and homeowners frustrated by high case volume delays affecting mandatory foreclosure settlement conferences in certain courts. Litigants will soon enjoy immediate and direct access to judges at these conferences in Kings, Queens, Nassau and Suffolk counties, the four counties with the highest foreclosure case volumes in the state.

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New York Courts Target Rules on ‘Zombie Debts’

By Richard E. Weltman

New York Courts Target Rules on ‘Zombie Debts’ By Richard E. WeltmanResponding to what he termed a “continuing stream of complaints,” New York’s Chief Judge Jonathan Lippman on May 1 announced that New York courts are proposing new rules to crack down on the filing of so-called “zombie debts,” insufficiently documented claims for default judgments against consumer debtors.

Judge Lippman wants creditors seeking to collect the debts—some of which may have been sold and resold by third-party credit buyers—to prove the obligations are actually outstanding and owed by those named in collection actions before New York courts will enforce them on behalf of creditors.

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Update: Supreme Court Rules That Inherited IRAs Are Not Protected In Bankruptcy

By: Michael L. Moskowitz

Supreme Court Rules That Inherited IRAs Are Not Protected In Bankruptcy By Michael L. MoskowitzLess than three months ago, we reported on a case in which the Supreme Court heard oral argument concerning whether or not inherited IRA accounts constitute retirement funds. See previous article (Supreme Court to Decide Dispute Regarding Inherited IRAs in Bankruptcy) here. On June 12, 2014, in a unanimous decision, the Supreme Court, in Clark v. Rameker, 13-299, ruled that inherited IRAs are not retirement funds within the meaning of the Bankruptcy Code.

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Update on Bankruptcy Exemptions: Bankruptcy Court Order Protects Debtor from Eviction

Update on Bankruptcy Exemptions: Bankruptcy Court Order Protects Debtor from EvictionWe recently reported on whether a bankruptcy debtor’s rent-stabilized lease constitutes an exempt asset in the form of a “local public assistance benefit” under New York Debtor and Creditor Law. The case is presently under consideration before the New York Court of Appeals.

Weltman & Moskowitz began following the case in October, when we reported on the chapter 7 trustee’s efforts to sell the rent-stabilized lease of Mary Veronica Santiago-Monteverde (“Debtor”), a 79-year-old widow. Many readers have been following the debtor’s opposition to the chapter 7 trustee’s efforts to sell the debtor’s interest in her rent-stabilized lease to the landlord as an asset of the bankruptcy estate.

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Update on Debtor Efforts to Strip-Off Unsecured Mortgage Liens: Supreme Court Denies Certiorari to Mortgage Lender in Sinkfield

Update on Debtor Efforts to Strip-Off Unsecured Mortgage Liens: Supreme Court Denies Certiorari to Mortgage Lender in SinkfieldThe United States Supreme Court recently denied a creditor’s petition for certiorari in an Eleventh Circuit case entitled Bank of America, N.A. v. David Lamar Sinkfield (No. 13-700). The issue concerns whether section 506(d) of the Bankruptcy Code allows a debtor to remove or strip-off a wholly unsecured—or “underwater”—mortgage lien in chapter 7 bankruptcy.

 

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Bankruptcy Fees Rise as of June 1

The United States Judicial Conference recently approved changes to the federal court miscellaneous fee schedules, including certain bankruptcy filing fees.

As of  Sunday, June 1, 2014, the filing fees for most bankruptcy matters will rise. These fees are collected from both debtors and creditors accessing the federal bankruptcy courts, whether in person or online.

 

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Corporate Governance Best Practices: Learning from Public Companies

By Richard E. Weltman

Most businesses across New York and New Jersey are owned and managed by a small number of shareholders or members. These closely held companies very often fail to employ even minimal corporate governance formalities like those found in their publicly traded counterparts.

 

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Update On NYC Rent Stabilization: Bankruptcy Law Meets Public Policy

By Michael L. Moskowitz

Last October we reported on the travails of Mary Veronica Santiago (“Debtor”), a 79-year-old widow embroiled in a dispute with her chapter 7 bankruptcy trustee John Pereira. The issue is whether the “value” in her New York City rent-stabilized lease can be considered an exempt asset protected from sale in a bankruptcy case. At stake is the Debtor’s ability to continue to reside in her apartment free of creditor claims. Given the many thousand rent protected tenants, this is where public policy and federal bankruptcy law intersect. To see the prior article click here.

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NY Court of Appeals Confirms Judgment-Debtors May Not Sue Banks Directly for EIPA Violations

New York’s highest court recently announced that account holders do not have a private right of action to sue banks for alleged violations of the Exempt Income Protection Act (“EIPA”). Cruz v. TD Bank, 2013, NY Slip. Op. 07762 (November 21, 2013). EIPA exempts certain Social Security, veterans, disability and unemployment benefits from creditor restraining orders and requires banks to inform affected account holders of their right to obtain exemptions from collection.

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Michael Moskowitz Participates in the Plainview-Old Bethpage JFK HS's 26th Annual Moot Court Competition

News Release Update  

MICHAEL MOSKOWITZ PARTICIPATES IN THE PLAINVIEW-OLD BETHPAGE JFK HIGH SCHOOL’S 26th ANNUAL MOOT COURT COMPETITION, HELD ON APRIL 3, 2014.

Media Contact:    Michael L. Moskowitz  212.684.7800

E-mail:   mlm@weltmosk.com or rew@weltmosk.com

For Immediate Release

NEW YORK, NY – On April 3, 2014, Michael L. Moskowitz, a founding member of Weltman & Moskowitz, LLP, participated as one of the judges in the Plainview-Old Bethpage John F. Kennedy High School’s 26th Annual Marvin Hazan Moot Court Competition.

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Supreme Court to Decide Dispute Regarding Inherited IRAs in Bankruptcy

On March 24, 2014, the United States Supreme Court heard oral arguments in the matter of Clark v. Rameker (In re Clark). The court appeared to be divided over reconciling the plain language of the Bankruptcy Code with what could be considered a windfall for the debtor. Clark involves the dispute over whether creditors can reach a debtor’s non-spousal inherited individual retirement account (“IRA”) in bankruptcy.

The Bankruptcy Code allows debtors to claim certain property as exempt by utilizing exemptions under state law or those specifically provided in the Bankruptcy Code.[1] Sections 522(b)(3)(C) and (d)(12)[2] allow debtors to exempt retirement funds, even where the state has opted out of the federal exemptions.

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New Federal Mortgage Disclosures Merit Lenders’ Careful Attention

In a major change, the Consumer Financial Protection Bureau (“CFPB”) will soon require financial mortgage lenders to offer borrowers a greater disclosure at loan closings. The new disclosures replace existing Truth-In-Lending Statements, HUD-1 Settlement Statements and Good Faith Estimate disclosures.

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BAPCPA: Monumental Failure or Work in Process?

In 2005, after 12 years of Congressional wrangling, Congress passed the Bankruptcy Abuse Prevention and Consumer Protection Act (“BAPCPA”).

 

The avowed purpose of BAPCPA was to reduce abusive filings by limiting consumer debtor’s access to chapter 7 relief. The financial service industry argued the change was needed to curb consumers’ “profligate spending” and perceived lax bankruptcy rules. By reducing access to chapter 7, lenders suggested that they would see increased distribution from those new chapter 13 cases due to limitations placed upon chapter 7 flowing from the so-called “means test.”

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Creditors Face Liability for Misrepresentations from Their Third-Party Debt Collectors

The U.S. Court of Appeals for the Second Circuit recently held that creditors may be liable under the false name exception to the Fair Debt Collection Practices Act (“FDCPA”) if they falsely represent to debtors they retained a third-party collection agent, when in fact the agent made no “bona fide” effort to collect.

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Understanding Reaffirmation Agreements

Attached is a wonderful reference guide published by the City Bar Justice Center titled Understanding Reaffirmation Agreements. A reaffirmation agreement is a contract between a debtor and creditor wherein the debtor agrees the creditor’s debt will survive the bankruptcy discharge. The authority for entry into a reaffirmation agreement can be found in 11 U.S.C. §524(c). Debtors and creditors alike are typically barraged with misinformation regarding when reaffirmation agreements are appropriate.

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Creditor’s Rights Update: New York Bankruptcy Court Declares Debt Owed to Sexually Abused Child Non-dischargeable in Mother’s Bankruptcy

Not every debt is entitled to be forgiven in bankruptcy. In a recent Northern District of New York bankruptcy decision, Chief Bankruptcy Judge Robert Littlefield Jr. held that a woman’s $3.75 million default judgment against her mother for negligent infliction of emotional distress would be excepted from discharge in her mother’s subsequent bankruptcy case. In re Irene Chaffee (Chaffee v. Chaffee), No. 07-90171 (Bankr. N.D.N.Y. September 3, 2013).

 

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Upcoming Event: January 29, 2014 - Partner Michael Moskowitz Speaks on Consumer & Corporate Bankruptcy Issues

Michael Moskowitz will be a featured speaker at the New York State Bar Association’s Annual Meeting on January 29, 2014. Mr. Moskowitz’s panel, one of  three to be presented by the Young Lawyers Section, will focus on consumer and corporate bankruptcy issues.  insert excerpt info here.

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Madoff update: Minnesota Bankruptcy Court Dismisses Ponzi Complaint for Trustee’s Failure to Name Specific Creditor Under State Court Fraudulent Transfer Claim

By Michael L. Moskowitz

Having represented numerous defendants in Ponzi-scheme adversary proceedings in the Second Circuit (New York), Weltman & Moskowitz closely follows the case law arising out of the massive Ponzi-scheme run by the now infamous Bernie Madoff. Uncovered in 2008, the resulting Madoff bankruptcies spawned dozens of decisions by the Bankruptcy Court, District Court and Second Circuit.  

 

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Weltman Judges 2013 Mock Trial Invitational at Yale University

NEW HAVEN - Partner Richard E. Weltman sat as a judge for the 18th Annual Yale Mock Trial Invitational on December 7 and 8, 2013. Details about the 2013 Yale Mock Trial Invitational can be found here.

The two-day event in New Haven, Connecticut fielded 42 teams from undergraduate colleges and universities across the United States. The student competitors, who serve as both attorneys and witnesses, emulate a jury trial based upon a fictional case using rules similar to the Federal Rules of Evidence. The 2013 competition results can be found here

 

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Rent Stabilization & Bankruptcy: Nightmare for NYC Tenants or Boon for Landlords and Owners?

We recently re-tweeted an article published in The New York Times on Monday October 21, 2013, entitled “Widow’s Bankruptcy Case Poses Risk to Rent-Stabilized Tenants.” 

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ALERT - William K. Harrington to replace Tracy Hope Davis as U.S. Trustee for Region 2

William K. Harrington, the U.S. Trustee for Massachusetts, New Hampshire, Maine and Rhode Island (Region 1), has been designated by Attorney General Eric Holder also to serve Region 2 replacing Tracy Hope Davis effective Nov. 27. 

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Chapter 13 Creditor’s Success Story Starts With Engagement of Skilled NY Bankruptcy Law Team

One of our lender clients, a New York City-based Federal Credit Union, came to us with a dilemma.

It seems the credit union was not receiving post-petition mortgage payments from its borrower, a chapter 13 debtor. Nor was the client receiving distribution payments from the debtor’s chapter 13 trustee. The lender had relied upon foreclosure counsel to handle the chapter 13 filing. Unfortunately, foreclosure counsel, not familiar with chapter 13 practice, only filed a Notice of Appearance and nothing else, not even a proof of claim.

 

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Loss Mitigation: How Borrower Bankruptcies Impact Lenders

Between 1998 and 2007, home mortgage debt nearly tripled from 4 trillion dollars to 10 trillion dollars. This mortgage boom resulted from easy lending and questionable subprime market practices. When the housing bubble burst, the economy tumbled. Many borrowers found themselves both unable to make mortgage payments and owners of real property worth less than what they owed. In response, many homeowners filed bankruptcy petitions either under chapter 7 to surrender their home, or chapter 13 to stop a foreclosure, repay pre-petition arrears, and hold on to their home.

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ALERT – Judicial Committees Publish Proposed Amendments to Bankruptcy Procedures and Forms

By Michael L. Moskowitz

On August 15, 2013, the Committee on Rules of Practice and Procedure of the Judicial Conference of the United States released their proposed amendments to the Bankruptcy Rules and Forms. The proposed amendments, rules committee reports, and other information are posted on the Judiciary’s website.  

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Debt Collection Firm Sanctioned for ‘Unintentional Error’ Under FDCPA

In a recent Southern District of New York decision, Judge Lorna Schofield held that Kucker & Bruh, LLP (“K&B”), a debt collection firm, violated the Fair Debt Collection Practices Act (“FDCPA”), by misrepresenting the character, amount and legal status of rent arrears allegedly owed by 82-year-old tenant Rafael Lee.

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Ediscovery Update: Sanctions Imposed For Less Than ‘Innocent’ Destruction Of Emails

A third revisit to purposeful evidence destruction—even when found to be “not malevolent”—was not a charm for the party doing the damage, according to a recent decision by Honorable Shira A. Scheindlin, who practically invented the “spoliation of evidence” sanction in New York’s federal district court for the Southern District about 10 years ago.

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“Shadow Docket” Reform Moves New York Foreclosure Cases to Settlement Conferences

On July 31, 2013, Governor Andrew Cuomo signed the so-called “Shadow Docket” Bill in connection with New York residential foreclosure actions. The bill adds a new section 3012-b to New York Civil Practice Law and Rules (“CPLR”). The new law also amends CPLR § 3408.

The new law is intended to promote the honesty and transparency in the residential foreclosure process by clarifying the obligations of lenders’ attorneys to the court and eliminating the growing number of “shadow docket” cases. Such cases are held in legal limbo while awaiting critical information necessary to trigger the scheduling of mandatory settlement conferences.  The Office of Court Administration estimates that as of July 7, 2013, there are between 5,000 to 7,000 shadow foreclosure cases.

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ALERT: Peninsula Hospital Trustee Files Multiple Adversary Proceeding Cases

On August 15, 2013, Lori Lapin Jones, as Trustee of Peninsula Hospital Center, a chapter 11 bankruptcy case pending in the Eastern District of New York (Brooklyn Vicinage), filed more than three dozen adversary proceeding cases seeking to recover hundreds of thousands of dollars in money or property for the benefit of the debtor’s creditors.

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Student Loans in Bankruptcy Update

In re Marlow, the United States District Court for the Eastern District of Tennessee affirmed that the debtor failed to demonstrate that paying his graduate and law school student loans constituted an undue hardship pursuant to the Brunner test, which was adopted by the Sixth Circuit.  In re Marlow, 2013 WL 3515726, at * 3 (E.D. Tenn. 2013).

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Second Circuit Confirms Madoff Trustee Lacks Standing to Assert Common Law Claims against Third-Party Financial Institutions

In Picard v. JPMorgan Chase & Co. (In re Bernard L. Madoff Invest. Secs. LLC), the United States Court of Appeals for the Second Circuit held last month that the “doctrine of in pari delicto" precluded Irving H. Picard, the trustee under the Securities Investor Protection Act (“SIPA”), from pursuing JP Morgan Chase & Co., HSBC Bank PLC, and other third-party defendants, on behalf of defrauded customers for certain common law claims.  In re Bernard L. Madoff Investment Securities, LLC, 2013 WL 3064848 (2d. Cir. June 20, 2013).

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Tide May be Turning for Student Loan Dischargeability in Bankruptcy

Several recent decisions demonstrate that courts are reconsidering the treatment of student loan debt dischargeability in bankruptcy under the “undue hardship” exception of section 523(a)(8) of the Bankruptcy Code. If the trend continues, the long-standing Brunner test may become a mere “relic of times gone by.” Roth v. Educational Credit Management Corp., 490 B.R. 908 (9th Cir. BAP 2013).

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Lenders Who Fail to Comply With CPLR 3408 Risk Significant Penalties

As lenders are aware, foreclosure proceedings in New York have changed considerably subsequent to the enactment of CPLR § 3408 and similar legislation, which placed additional obligations on lenders commencing a foreclosure action with respect to a homeowner’s primary residence. 

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ALERT -- RECENT OPINION OF THE SECOND CIRCUIT COURT OF APPEALS REGARDING REPOSSESSED COLLATERAL AND POTENTIAL DAMAGES – In re Weber

Last month the Second Circuit Court of Appeals (“Second Circuit”) issued a decision of interest to all secured lenders. The case, Christopher Weber v SEFCU, rejected the reasoning of the District Court for the Northern District of New York in the Alberto case that had allowed a secured creditor to essentially sit on repossessed collateral until the debtor makes an offer of adequate protection.  This decision now becomes the law of New York and Connecticut, unless the matter is appealed and reversed by the United States Supreme Court which is highly unlikely.

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CPLR §3215(c) Mandates Moving For Entry of Judgment Within One Year After Default Or Face Dismissal – A Cautionary Tale and A Success Story

Our client, a major New York-area Credit Union, hired outside counsel to file a residential foreclosure action involving a home loan. The complaint, filed by another law firm, was not verified by an officer or employee of the foreclosing lender.  Rather, it was signed only by the attorney.  Defendant homeowner failed to file an answer to the complaint...

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A Lawyer Representing Herself in a Commercial Dispute May Well Have a Fool for a Client

In a tangled commercial dispute, a law firm and its principal owner, without counsel, sued a well-respected New York City business equipment and technology services company for breach of contract.  Problem was, the law firm targeted the wrong party in a grudge match over a faulty printer...

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FEDERAL SEQUESTER CAUSES U.S. TRUSTEE TO SUSPEND DEBTOR AUDITS FOR NOW

As authorized in Section 603(a) of Public Law 109-8, the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPA), the United States Trustee Program (USTP) established procedures for independent audit firms to audit petitions, schedules, and other information in consumer bankruptcy cases. Pursuant to 28 U.S.C. § 586(f), the USTP contracted with independent accounting firms to perform audits in cases designated by the USTP.  Due to budgetary constraints, the USTP has indefinitely suspended its designation of cases subject to audit and has notified the independent accounting firms performing the audits.  Pursuant to Section 603(a) of BAPCPA and 28 U.S.C. § 586(a)(6), after the conclusion of the fiscal year the USTP will make public information concerning the aggregate results of the debtor audits performed during fiscal year 2013.

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RENOVATIONS AT LAW FIRM’S NYC FLAGSHIP NOW COMPLETE

Weltman & Moskowitz, LLP, a New York City-based business and bankruptcy law firm, has announced the ribbon-cutting for its extensively renovated midtown east location near Grand Central Station.

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MICHAEL MOSKOWITZ PARTICIPATES IN THE PLAINVIEW-OLD BETHPAGE JFK HIGH SCHOOL’S 25th ANNUAL MOOT COURT COMPETITION, HELD ON March 20, 2013

On March 20, 2013, Michael L. Moskowitz, a founding member of Weltman & Moskowitz, LLP, participated as one of the judges in the Plainview-Old Bethpage John F. Kennedy High School’s 25th Annual Marvin Hazan Moot Court Competition.

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9 Videos About Bankruptcy Basics

The United States Courts created 9 videos to help explain the basics of filing for bankruptcy relief. Whether you are a debtor or a creditor, these resources will be helpful to understand bankruptcy process.

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Creditors Need to Take Notice of the Recent Amendments to the Federal Bankruptcy Rules Which Affect the Filing of Proofs of Claims

The Advisory Committee on Bankruptcy Rules for the Judicial Conference of the United States which is made up of federal judges, bankruptcy attorneys, and others, proposed amendments to Bankruptcy Rules 1007, 2015, 3001, 7054, and 7056. This Alert focuses on Bankruptcy Rule 3001.

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NEW YORK’S COURT OF APPEALS SAYS FEDERAL CREDIT UNIONS MUST PAY NEW YORK’S MORTGAGE RECORDING TAX

NEW YORK, NYOn October 18, 2012, the New York Court of Appeals held that federal credit unions are subject to New York State’s Mortgage Recording Tax.  The Mortgage Recording Tax requires a payment to New York State of one half of one percent (.5%) for the privilege of recording a mortgage.rpt info here.

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Richard E. Weltman Attends International Executives Association Leadership Conference in Reno

Richard E. Weltman, legal counsel to the International Executives Associate (IEA) and a member of the Board of Directors of the Executives Association of New York City, attended the IEA Leadership Conference held  October 2-4, 2012 in Reno, Nevada. The conference was hosted by the Executives Association of Reno.

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New Bankruptcy Rule 3002.1: A Trap for Unwary Secured Creditors?

On December 1, 2011, changes to the Federal Rules of Bankruptcy Procedure (“Bankruptcy Rules”) complicated the filing of proofs of claim by secured creditors in chapter 13 cases. These new rules require secured creditors to file and continually update filed proofs of claim.

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ELEVENTH CIRCUIT REVERSES LOWER COURTS AND PERMITS LIEN STRIPPING IN CHAPTER 7 CASE

NEW YORK, NYThe U.S. Court of Appeals for the Eleventh Circuit recently ruled that chapter 7 bankruptcy debtors can strip off, or cancel, wholly unsecured mortgage liens. The per curiam opinion, issued May 11, 2012, marks a significant departure from the standard Chapter 7 practice in most districts.

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The Student Loan Crisis: Is there a Bankruptcy Solution?

Higher education costs continue to sky rocket with no end in sight. Students are incurring potentially crushing amounts of debt. Americans owe more than $1 trillion dollars in student loans, which has now surpassed the national credit card debt. While the surge in educational debt is worrisome, an even larger concern is private student loans. Private loans are a riskier way to finance education than through their federally subsidized counterparts.

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WELTMAN & MOSKOWITZ, LLP ANNOUNCES LEASE EXTENSION FOR ITS NEW YORK CITY OFFICES

Weltman & Moskowitz, LLP is pleased to announced it has signed a lease renewal for its New York CIty headquarters located at 270 Madison Avenue. The lease runs through December 31, 2022.

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OUT-OF-COURT WORKOUT OR CHAPTER 11?

As credit markets tighten, professionals and business owners alike have trouble finding access to credit to fund and grow business operations. Media reports indicate loans are harder to obtain and asset-to-debt ratios are stricter than ever. As cash dwindles the debt load rises. For the overwhelmed business owner bankruptcy is only one answer. There are other alternatives.

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CREDIT UNION LENDER MUST IMMEDIATELY RETURN TO DEBTOR REPOSSESSED VEHICLE UPON NOTICE OF BANKRUPTCY FILING

On December 22, 2010, an upstate New York bankruptcy court in an adversary proceeding filed by debtor Christopher Weber against SEFCU (“Credit Union”), granted Credit Union’s motion for summary judgment. 

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HOW TO DEAL WITH LOUSY CREDIT REPORTS?: Why Knowing What Your Creditors are Saying About You Can Help You Take Charge

Often people with less than perfect credit scores are surprised that locating one standardized credit profile or a “uniform” credit report is more myth than reality. Judgments, repossessions, slow payment history, tax liens--as well as bankruptcy filings--are reported to a varying degree by creditor filings or with public record databases maintained by one of the three largest consumer credit reporting agencies (“CRAs”). Sometimes adverse information is reported by other sources as well. In order to learn how badly your credit rating may have been damaged, you must first identify what personally identifiable credit information has been reported about you to the CRAs.

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WELTMAN & MOSKOWITZ, LLP LAUNCHES NEW WEBSITE

The law firm of Weltman & Moskowitz, LLP is delighted to announce the launch of its newly redesigned website, www.weltmosk.com.

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MICHAEL MOSKOWITZ PARTICIPATES AS AN "APPELLATE JUDGE" FOR FIRST-YEAR HOFSTRA LAW SCHOOL STUDENTS ON APRIL 14, 2012

NEW YORK, NY - On April 14, 2012, Michael L. Moskowitz, a founding member of Weltman & Moskowitz, LLP, participated, for the eleventh consecutive year, as one of three "appellate judges" sitting at the Maurice A. Deane School of Law at Hofstra University with oral arguments made by first-year law students.

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MICHAEL MOSKOWITZ PARTICIPATES IN THE PLAINVIEW-OLD BETHPAGE JFK HIGH SCHOOL'S 23rd ANNUAL MOOT COURT COMPETITION, HELD ON March 29, 2012

NEW YORK, NY - On March 29, 2012, Michael L. Moskowitz, a founding member of Weltman & Moskowitz, LLP, participated as one of the judges in the Plainview-Old Bethpage John F. Kennedy High School's 23rd Annual Moot Court Competition. The tournament was co-sponsored by the Maurice A. Deane School of Law at Hofstra University.

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WELTMAN & MOSKOWITZ, LLP WELCOMES MELISSA A. GUSEYNOV AS ASSOCIATE ATTORNEY

NEW YORK, NY -

Weltman & Moskowitz, LLP is pleased to announce that Melissa A. Guseynov has joined the firm as an associate in the Bankruptcy and Creditors’ Rights Group.

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New Website! PaperStreet launches weltmosk.com re-design!

PaperStreet Web Design's development team just wrapped up the brand new re-design of weltmosk.com.   The new site not only has a modern design but is using the latest web technologies, JavaScript libraries, and web standards.

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MICHAEL MOSKOWITZ PARTICIPATES AS AN "APPELLATE JUDGE" FOR FIRST-YEAR HOFSTRA LAW SCHOOL STUDENTS ON APRIL 9, 2011.

NEW YORK, NY - On April 9, 2011, Michael L. Moskowitz, a founding member of Weltman & Moskowitz, LLP, participated, for the eleventh consecutive year, as one of three "appellate judges" sitting at Hofstra University School of Law in connection with oral arguments made by first-year law students.

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MICHAEL MOSKOWITZ PARTICIPATES IN THE PLAINVIEW-OLD BETHPAGE JFK HIGH SCHOOL'S 23rd ANNUAL MOOT COURT COMPETITION, HELD ON April 7, 2011.

NEW YORK, NY - On April 7, 2011, Michael L. Moskowitz, a founding member of Weltman & Moskowitz, LLP, participated as one of the judges in the Plainview-Old Bethpage John F. Kennedy High School's 23rd Annual Moot Court Competition. The tournament was co-sponsored by the Hofstra University School of Law.

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